F I L E D

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
__________________________

United States Court of Appeals

Tenth Circuit

JUL 17 1998

PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellant,
v.
DONALD KENARD DAVIS,

No. 97-3314
(D. Kan.)
(D.Ct. No. 96-3042-DES)

Defendant-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR, BRORBY, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.

Mr. Donald Davis was found guilty of five drug-related counts, including
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
*

two counts under 18 U.S.C. 924(c) for use of a firearm in a drug trafficking
crime. He was sentenced to 240 months imprisonment, partly comprised of 120
months for the 924(c) convictions. He subsequently filed a 28 U.S.C. 2255
motion seeking to set aside his 924(c) convictions in light of the United States
Supreme Courts ruling in Bailey v. United States, 516 U.S. 137, 150 (1995)
(clarifying the term use of a firearm for purposes of 924(c)). The
Government filed a response, claiming the 924(c) convictions should stand in
spite of Bailey. In its response, the Government did not expressly request the
court to resentence Mr. Davis if it granted his 2255 motion. The district court
granted Mr. Davis 2255 motion, vacating his 924(c) convictions. United
States v. Davis, 924 F. Supp. 1082 (D. Kan. 1996). The district courts order,
however, did not address the effect of its ruling on Mr. Davis sentence. Id. at
1084. Six days later, the Government filed a motion to resentence Mr. Davis to
reflect the firearms sentence enhancement under United States Sentencing
Guidelines 2D1.1(b)(1). The court denied the Governments motion,
concluding it did not have jurisdiction to modify a previously imposed sentenced.
The Government appeals, and we reverse.

The Government claims the district court retained jurisdiction to resentence

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Mr. Davis after it vacated his firearms convictions. We review the district courts
determination as to its jurisdiction to resentence de novo. United States v.
Mendoza, 118 F.3d 707, 709 (10th Cir.), cert. denied, 118 S. Ct. 393 (1997). A
district court may modify a defendants sentence only when Congress has
expressly granted the court jurisdiction to do so. United States v. Blackwell, 81
F.3d 945, 947 (10th Cir. 1996), revd on other grounds, 127 F.3d 947 (10th Cir.
1997).

The Government claims the district court retained jurisdiction under 28

U.S.C. 2255 to resentence Mr. Davis. Section 2255 states, in part, if the court
finds the defendant entitled to relief under the statute, then the court shall vacate
and set the judgment aside and shall discharge the prisoner or resentence him or
grant a new trial or correct the sentence as may appear appropriate. 28 U.S.C.
2255 (emphasis added). We agree with the Government that the clear language
of the statute confers jurisdiction on the district court to discharge the prisoner,
grant a new trial, resentence or correct the sentence as appropriate, after vacating
a judgment and conviction pursuant to 2255. See United States v. Walker, 118
F.3d 559, 561 (7th Cir. 1997) (ruling a court has a reasonable amount of time to
resentence following its vacation of a conviction). Indeed, continuing jurisdiction
under 2255 to discharge a prisoner, order a new trial, resentence or correct a
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sentence is necessary since once a court determines 2255 relief from a 924(c)
conviction is appropriate, it must then set aside the judgment, which
encompasse[s] both convictions and sentences. Mendoza, 118 F.3d at 709.

Further, we believe Mr. Davis had no legitimate expectation of finality

since it is well established a defendant who mounts a successful collateral attack
on a single count of conviction faces the risk that the district court will look anew
at the entire punishment and resentence on the remaining count[s]. Walker, 118
F.3d at 561 (citations omitted). It is appropriate for the district court to
resentence a defendant on remaining convictions that are interdependent with the
vacated convictions to carry out the intent of the United States Sentencing
Guidelines. Mendoza, 118 F.3d at 709-10 (noting sentencing under the
Guidelines constitutes a sentencing package which considers all counts together,
therefore, when interrelated counts are vacated, resentencing is appropriate).
Moreover, the Government requested resentencing only six days after the courts
order vacating Mr. Davis convictions. For these reasons, we conclude the
district court erred in its conclusion it did not have jurisdiction to consider
resentencing.

Accordingly, the decision of the district court is REVERSED. The case is

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REMANDED to the district court for resentencing on the remaining counts.

Entered by the Court:

WADE BRORBY
United States Circuit Judge

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